Section 230 of the Communications Decency Act protects online platforms and their users from liability for the speech of a third party. Congress has introduced about 20 proposals to repeal or reform Section 230, based on concerns that the law allows social media companies to suppress conversative voices, or to get away with scant content moderation. But Section 230 does not just protect social media or “big tech,” and ARL and our members are working to help lawmakers, our community, and the general public understand how the law protects libraries and universities.
Libraries have historically provided a platform for public discourse; Section 230 allows libraries to regulate virtual discussions in real time, for example, by muting people who violate policies and rules governing these events without fear of incurring liability. Libraries also host third-party speech through community-engagement projects, such as the New York Public Library menus project, the Library of Congress By the People project, and the US National Archives and Records Administration (NARA) Citizen Archivist project, all of which help libraries organize and provide context to collections faster than they could by relying on catalogers alone. Thanks to Section 230’s protections, libraries can remove offensive content without concern about taking on liability for that content, or liability for taking action to remove it.
Reforming Section 230 without consideration for these activities may result in the loss of rich conversations and opportunities to inform and educate, and address misinformation. We urge Congress to consider the potential unintended consequences of reforming Section 230, and to hold hearings with research libraries and other higher education stakeholders to develop a record of the breadth of Section 230’s protections.
Our work in this area includes:
- Issue brief on Section 230 and summary of discussion that took place during 2021 ARL Spring Association Meeting
- Webinar on “Understanding the Full Scope of Section 230 in the Internet Ecosystem” with the Internet Infrastructure Coalition and the American Library Association, and featuring Greg Cram, director of copyright permissions and information policy at New York Public Library (NYPL)
- Amicus brief in the case of Hepp v. Facebook with the Electronic Frontier Foundation (EFF). ARL’s interest in this case is to ensure that the internet remains open and free. The brief makes two key points related to technical and legal issues in the case: the exclusion of intellectual property claims from the Section 230 safe harbor applies only to federal copyright and patent law, and not state publicity rights; and construing Section 230 to permit publicity-right claims would restrict speech and lead to censorship. The case decision, made in the US Court of Appeals for the Third Circuit, sets up a “circuit split” with a prior Ninth Circuit decision, which means it could head to the US Supreme Court.
An overview of Section 230:
The first clause holds that it is the speakers, not the platforms, who are liable for content they post:
Section 230(c)(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider
The second clause incentivizes content moderation by guaranteeing the liability protection:
Section 230(c)(2) No provider or user of an interactive computer service shall be held liable on account of—
A. any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
B. any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
Libraries are included in the statutory definition of “interactive computer service”:
Section 230 (f ) (2) The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.